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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

MARVIN GARCIA,

NO. CIV. S-04-496 LKK/PAN P

Petitioner,

v. O R D E R

JOHN ASHCROFT, et al.,

Respondents.

 /

Pending before the court is petitioner’s writ of habeas 

corpus pursuant to 28 U.S.C. § 2241 and respondent’s motion to

dismiss the writ on the ground that this court lacks jurisdiction.

Petitioner challenges the deportation order issued by the

Immigration Judge (“IJ”) in 1996 on the grounds that it is invalid,

inter alia, because the IJ misadvised him as to his rights, so his

due process rights were violated. Petition at 1-2. On March 17,

2005, the magistrate judge filed findings and recommendations

(“F&Rs”), recommending that respondents’ motion to dismiss be

denied and that petitioner’s application for a writ of habeas

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1 The REAL ID Act of 2005 became effective on May 11, 2005.

In the original order, this court concluded that habeas

jurisdiction exists for the district court to review petitioner’s

collateral attack on his underlying removal order. See ArreolaArreola v. Ashcroft, 383 F.3d 956 (9th Cir. 2004). While this

particular holding from Arreola-Arreola is superceded by the REAL

ID Act of 2005, Arreola-Arreola also held that petitioner’s

deportation order was invalid, in part, because his due process

rights were violated by defects in the underlying deportation

proceeding. The Ninth Circuit explained that this argument has

“considerable force” because Congress cannot remove an alien

without first providing proceedings conforming to traditional

standards of fairness encompassed in due process of law. Id. at

962 (citations omitted). Under the reasoning set forth in

Arreola-Arreola, it appears to this court that petitioner presents

a plausible ground for relief under 28 U.S.C. § 2241 since he was

able to present the court with evidence that his due process rights

were violated by the deportation proceeding. The record reflects

that the IJ failed to advise him of the possibility of raising the

defense to his deportation and to give him the opportunity to

develop the issue. 

2

corpus be granted. Respondents have filed objections. Before this

court had the opportunity to issue its order adopting the

magistrate judge’s findings and recommendations, the REAL ID Act

of 2005 became effective.1 The REAL ID Act of 2005 amends 8 U.S.C.

§ 1158(b)(1) by adding the following:

(5) EXCLUSIVE MEANS OF REVIEW – Notwithstanding any other

provision of law (statutory or non-statutory), including

section 2241 Title 28, United States Code, or any other

habeas corpus provision, and sections 1361 and 1651 of such

Title, a petition of review filed with an appropriate court

of appeals in accordance with this section shall be the sole

and exclusive means for judicial review of an order of

removal entered or issued under any provision of this Act,

except as provided in section (e). 

...

(c) Transfer of Cases. -- If an alien’s case, brought under

section 2241 of Title 28 United States Code, and challenging

a final administrative order of removal, deportation, or

exclusion is pending in a district court on the date of the

enactment of this decision, then the district court shall

transfer the case (or the part of the case that challenges

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the order of removal, deportation, or exclusion) to the court

of appeals for the circuit in which a petition for review

could have properly been filed under section 242(b)(2) of the

Immigration & Nationality Act (8 U.S.C. § 1252),....The Court

of Appeals shall treat the transferred case as if it had been

filed pursuant to a petition for review under such section

242 except that subsection (b)(1) of such section shall not

apply. 

Pursuant to the provisions of the Real ID Act of 2005, this is a

pending case under 28 U.S.C. § 2241 which challenges an order of

deportation or removal. It must be transferred to the United

States Court of Appeals for the Ninth Circuit.

The court also notes that pursuant to the Ninth Circuit Court

of Appeals General Order 6.4 Emergency Motions (c), Motions for

Stay of Deportation or Removal in petitions for review, “[u]pon the

filing of a motion or request for stay of removal or deportation,

the order of removal or deportation is temporarily stayed until

further order of the Court.” Counsel for petitioner is directed

to file a Motion to Stay with the Court of Appeals so that no

deportation action will be undertaken pending transfer of this case

to the Court of Appeals for the Ninth Circuit. 

Accordingly, the court hereby ORDERS that:

1. This case is TRANSFERRED to the Ninth Circuit Court of

Appeals for the Ninth Circuit as required by the REAL ID ACT of

2005; section 5(c); and

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2. Counsel for petitioner are directed to file a motion to

stay the deportation order with the U.S. Court of Appeals for the

Ninth Circuit.

IT IS SO ORDERED.

DATED: May 24, 2005.

/s/Lawrence K. Karlton 

LAWRENCE K. KARLTON

SENIOR JUDGE

UNITED STATES DISTRICT COURT

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